A Third Jewish Justice?

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It was the hot political news of 1916. A Jewish lawyer was being seriously considered for the first time for a seat on the Supreme Court, and some Americans were upset. Louis Brandeis was too liberal, critics said.

“It was certainly easy to find anti-Jewish comments” from Brandeis’ opponents, says Jonathan Sarna, professor of American Jewish history at Brandeis University, an institution named for the history-making justice.

Nearly a century after Brandeis established the precedent of a Jew on the country’s highest court, ushering in a so-called “Jewish seat” for much of the last 94 years, the Supreme Court may soon have its third Jewish Justice.

And there is no controversy.

According to most media reports, two Jews are on the short list of potential nominees by President Obama to replace John Paul Stevens, who last week announced his retirement at the end of the court’s current session.

They are Solicitor General Elana Kagan, and Merrick Garland, a federal judge. The third name on the consensus short list, also a woman, is Diana Wood, also a federal judge.

With the departure of Stevens, the once-all-Protestant Supreme Court may find itself without a single Protestant member — which may be more of an ethnic-religious consideration than a nominee’s Jewish background.

But, says Sarna, on leave from Brandeis University this year while serving as a senior scholar at the Mandel Leadership Institute in Jerusalem, “this particular president” — the country’s first African-American commander-in-chief — “is much more likely to base his decision on the political character of the candidate.”

In other words, being Jewish won’t hurt and it won’t help.

“It’s not unthinkable,” Sarna says, “that this president would like [the demographic composition of] the Supreme Court to be more representative of this country.”

Obama may again try to make a historic appointment, when he did last year by choosing Sonia Sotomayor, a Hispanic from the Bronx, Sarna says. This time: maybe an Asian or gay. “Race and gender are much more important. We are clearly beyond a ‘Jewish seat.’”

The fact that a third Jewish justice on the Supreme Court — the current ones are Ruth Bader Ginsburg and Stephen Breyer — is possible, and has drawn no critical notice, “is a sign of the normalization of Jews” in American society, Sarna says. “That’s an enormous change” from the days of Louis Brandeis.